Biden’s Pardon Falls Short of Cannabis Justice Reform

On Oct. 6, 2022, President Joseph R. Biden Jr. announced that he would grant a pardon for those federally convicted for the offense of simple possession of marijuana. This historic proclamation is the first time that a sitting president has addressed the failed war on cannabis and its systemic injustices toward people of color. But while President Biden’s executive action highlights the importance of cannabis justice reform, it is only the first step. 

Biden’s statement on marijuana reform highlights three failed steps in cannabis justice reform that must be addressed. First, the president will pardon federal offenses of simple possession of marijuana. The pardon will apply to all current United States citizens, as well as permanent residents who have violated the Controlled Substances Act §844 (CSA) or the D.C. Code §48-904.01(d)(1) on or before Oct. 6, 2022. In return, those who receive the pardon will have their political and civil rights fully restored, relieving the “collateral consequences,” i.e., the denial of employment, housing, educational opportunities, and the like that come with these sentences. Secondly, the president called on all governors to pardon state offenses of simple possession of marijuana. Thirdly and finally, he has asked the Secretary of Health and Human Services, Xavier Becerra, and the Attorney General, Merrick Garland, to review the scheduling of marijuana under federal law. However, all regulations involving trafficking and marketing were to remain in place. The scheduling of a drug is relative to the CSA, where the federal government places all regulated substances into schedules depending on the substance’s medical use, the potential for abuse, and safety or dependence liability. According to the DEA, marijuana is a Schedule I drug: it has no accepted medical use in the United States, portrays a high potential for abuse, and lacks credible safety for use under medical supervision. Heroin and LSD are also classified as Schedule I drugs.

Several implications arise from the president’s statement. While state and federal criminal justice databases cannot estimate the exact number, the quantitative difference between federal and state convictions involving marijuana is abysmal. There are ~6,500 people federally prosecuted and ~40,000 people prosecuted on the state level for marijuana convictions. A large majority of marijuana arrests happen at the state level, about 98%. The kicker: virtually no prisoners are serving time for simply possessing marijuana on the federal level. The government will not clear the records for the small number of people federally convicted of this crime. A pardon will be on their legal record, which indicates that the president has forgiven their crimes, but those exact crimes involving marijuana remain on their record. This act will restore any lost civil and political rights, but leaves standing the hurdles convicted individuals face when re-entering the world. 

Governors have been called on to use their clemency powers to help many people who are not affected by the president’s pardon. Currently, adult recreational use of cannabis is legal in 19 states and the District of Columbia, and 37 states regulate the medicinal use of cannabis. Many people are sitting behind bars in states where their crimes are now legal, and only seven states have record clearing laws that specifically address cannabis offenses. Between 2001 and 2010, there were 8.2 million arrests for marijuana, with 88% of them involving the possession of the drug. Research by the ACLU has found that trends of racial bias towards Black and Latinx populations face the forefront of these arrests in all states, regardless of legalization and decriminalization statutes, even though white people and people of color use marijuana at the same rate. This is where many cannabis justice reform advocates believe Biden fell short—decriminalizing marijuana on the state level does not fix the discrepancies of racial bias, let alone help every prisoner held captive by some stems and seeds.

There are two ways that total decriminalization of marijuana can happen. Congress has the power to pass legislation to amend the CSA, either moving it to a lower schedule or removing it from the CSA entirely. Or, constituents can petition the Drug Enforcement Administration (DEA) to review the Scheduling of marijuana. The latter option begins with the DEA collecting information about the drug from various sources, e.g., law enforcement laboratories and state and local law regulatory agencies. By the authority of the Attorney General, the DEA then requests a scientific and medical evaluation of the drug from the Department of Human and Health Services. This data is relayed back to the DEA along with a recommendation for controlling the drug and which schedule it should reside in. Finally, the DEA Administrator will publish a final order in the Federal Register. Even if marijuana is moved to Schedule II (examples include fentanyl, cocaine and methamphetamine) or Schedule III (anabolic steroids and codeine products), there will still be criminal penalties for possession, cultivation, and sale of the plant. Thus, there are still many policies and legal battles for the de-scheduling and total decriminalization of marijuana. 

At the time of this article being written, no prisoners have been released since the announcement, and it will take time for any moves to be made with the rescheduling of marijuana. We can only hope for an expedited process to start addressing cases where justice has failed its people. Overall, President Biden’s proclamation is the first step for a paradigm shift of cannabis in the political sector, hopefully reducing and eliminating the severity of sentencing over a plant.